Lyman v. Humphrey
Opinion of the Court
The plaintiff introduced, as evidence of his title to the portion of common land in Norfolk described in the declaration, a survey and lay-out to himself, partly on his own right and partly on the right of Moses Lyman, deceased, to whom he was executor -; which proceeding was in the common form, under the hands of the proprietors’ committee, and duly recorded in the public records.
• To the admission of this evidence the motion states that the defendant’s counsel objected, but for what particular reason it does not appear; and hence, as the objection is so general, we can not take notice of it—the rule requiring that in motions for new trials the precise objection taken shall be stated, together with the opinion expressed thereon by the court. But we would say that we have not discovered any valid ground for the objection, in the suggestion of a variance between the title stated in the declaration and that proved on the trial.
Assuming then, as we do, that the plaintiff made out a prima facie case, (and if he did not, the defendant should, have moved for a non-suit, j we look further to see if any error has intervened in the later proceedings of the court.
The plaintiff having introduced his proof and rested,' the defendant had a right to disprove the prima facie title of the plaintiff, or to prove an earlier and better title in himself. He
The defendant’s counsel insist, and this seems to have been the idea of the judge below, that the plaintiff could not be allowed to question the supposed survey and lay-out to said Eliakim, because, as they claim, the committee of the proprietors of this land in fact made the survey and lay-out to him, and their act operates as an estoppel upon the plaintiff. But how is this ? If Noah Humphrey had no right in the common land, Eliakim’s survey and lay-out did not give him one. He was a mere intruder; he had no business there at all; and the committee could not invest him with the -rights which belonged to other persons. There are here none of the elements of an estoppel. The committee were authorized only to survey and lay out to the true proprietors; nor were they clothed with power to decide who were or who were not such. No judicial power was given them.
Something'has been said about the insufficiency of the survey and lay-out in itself, to confer a perfect legal title upon the said Eliakim; but on the other hand it is said that this is the customary mode in such cases, and that deeds of conveyance from the committee to the proprietors are not usual or necessary.
We are of the opinion that a new trial should be granted.
In this opinion the other judges concurred.
New trial advised.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.